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HomeMy WebLinkAboutResolution - 5825 - Approve Changes To Amended Power Sales Contract - WTMPA - Power Purchasing - 04_23_1998NO. 5825 A RESOLUTION approving certain change Power Sales Contract with West Power Agency; and resolving other and related thereto. RESOLUTION Item #24 April 23, 1998 s to the Amended Texas Municipal matters incident WHEREAS, pursuant to a resolution adopted on March 12, 1998, the City Council approved and authorized the execution of an Amended Power Sales Contract (the "Contract") by and between the West Texas Municipal Power Agency (the "Agency") and the Cities of Lubbock, Tulia, Brownfield and Floydada (the "Cities"); and WHEREAS, subsequent to such approval, the definition of "Initial Project" and Section 14(d) of the Contract have been changed to clarify the scope of such project and address concerns of the rating agencies; and WHEREAS, the City Council hereby finds and determines that the aforesaid changes to the definition of "Initial Project" and Section 14(d) should be approved; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK, TEXAS: SECTION 1: The Amended Power Sales Contract by and between the Agency and the Cities, attached hereto as Exhibit A and incorporated herein by reference as a part of this Resolution for all purposes, including the changes made to the definition of 11Initial Project" and Section 14(d) thereof, is hereby approved as to form and content, and such Contract in substantially the form and substance attached hereto is hereby authorized to be executed by the Mayor and City Secretary for and on behalf of the City and as the act and deed of the City Council; and upon its execution by said officials, such Amended Power Sales Agreement, dated as of July 1, 1995 and amended as of April 1, 1998, shall be deemed and constitute the valid and binding agreement by and between the Agency and the City with respect to the purchase of power under such Agreement. SECTION 2: It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by V.T.C.A., Government Code, Chapter 551, as amended. SECTION 3: This Resolution shall be in force and effect from and after its passage on the date shown below and it is so resolved. OW79U ',.+ 23 PASSED AND ADOPTED, this April 1, 1998. ATTEST: City cretary Kaythie D ell (City Seal-) APPROVED AS TO CONTENT: aul Thom6son Director of Electric Utilities CITY OF LUBBOCK, TEXAS 6 ) vj �4x - z P-/— J-- //� � a or , Wing i ton -2- RESOLUTION NO. 5825 Item #24 April 23, 1998 EXHIBIT A AMENDED POWER SALES CONTRACT BETWEEN WEST TEXAS MUNICIPAL POWER AGENCY AND CITY OF BROWNFIELD, TEXAS CITY OF FLOYDADA, TEXAS CITY OF LUBBOCK, TEXAS CITY OF TULIA, TEXAS Dated: As of July 1, 1985 Amended: As of April 1, 1998 J TABLE OF CONTENTS Section 1: Term of Contract 1 Section 2: Definitions 1 Section 3: Sale and Purchase of Power and Energy 5 Section 4: Performance of Certain Services 6 Section 5: Delivery of Power and Energy 7 Section 6: Annual System Budget 7 Section 7: Rates' and Charges 8 Section 8: Meter Readings and Payment of Bills 10 Section 9: Meter Testing and Billing Adjustment 10 Section 10: Payments to Constitute Operating Expenses of City System 10 Section 11: City Rate Covenant 10 Section 12: Covenants of the Agency 10 Section 13: Project Approval and Rights of Cities When a Project is not Approved 11 Section 14: Debt Service Guarantee: Operating and Maintenance Expenses 13 Section 15: Remedies in Event of Default 15 Section 16: Payment Due Dates and Delinquency 15 Section 17: Power Sales Contracts 16 Section 18: Continuation of Services 16 Section 19: City Not to Sell its Electric System 16 Section 20: Assignment of Rights of a City 16 Section 21: Dissolution of the Agency 17 Section 22: Force Majeure 17 Section 23: Insurance 17 Section 24: Reports 18 Section 25: Records and Accounts 18 Section 26: Access 18 Section 27: Governmental Rates. Regulations and Laws 18 Section 28: Easements 18 Section 29: Notices 19 Section 30: Severability 19 Section 31: Entire Contract 19 Section 32: No Waiver 19 Section 33: Contracts to be Separate 19 0501481/973990 -2- Page 1- a Exhibit A 22 Exhibit B 23 0501481/973990 -3- AMENDED POWER SALES CONTRACT BETWEEN WEST TEXAS MUNICIPAL POWER AGENCY AND CITY OF BROWNFIELD, TEXAS CITY OF FLOYDADA, TEXAS CITY OF LUBBOCK, TEXAS CITY OF TULIA, TEXAS This Contract, made and entered into as of the 1st day of July, 1985 (but effective on the date provided in Section 1 hereof), and amended as of the 1st day of April, 1998, by and between the West Texas Municipal Power Agency, a municipal corporation and political subdivision of the State of Texas, and the City of Brownfield, the City of Floydada, the City of Lubbock, and the City of Tulia, each of which cities is a municipal. corporation of the State of Texas (herein collectively called "Cities" or individually called "City"). WITNESSETH: WHEREAS, each City has need for an economical, reliable source of Power and Energy to meet the growing demands of its customers and has determined to purchase such Power and Energy from the Agency; and WHEREAS, the Agency proposes to construct or acquire electric generating plants and transmission lines or to acquire ownership interests therein, and to purchase or otherwise obtain Power and Energy for the purpose of supplying Power and Energy to each City and others; and WHEREAS, each City desires to purchase, and the Agency desires to sell, Power and Energy on the terms and conditions herein set forth: NOW THEREFORE, in consideration of the mutual undertakings herein contained, the Agency and each City agree as follows: Section 1: Term of Contract. This Contract, as amended, became effective upon the delivery to the Agency of the proceeds of the West Texas Municipal Power Agency Revenue Bonds, Series 1987, i.e, October 2, 1987. Subject to the provisions of Section 18 hereof, this Contract, as amended, shall remain in effect until (i) April 1, 2028, or (ii) the date all Debts of the Agency shall have been paid or deemed to be paid in 05014811973990 -1- N accordance with the provision of the Bond Resolution (hereinafter defined), whichever date shall first occur. Section 2: Definitions. As used herein: (1) "Act" shall mean Chapter 166, Acts of the 63rd Legislature, Regular Session, 1973, as amended by Chapter 143, Acts of the 64th Legislature, Regular Session, 1975 and Chapter 405, Acts of the 66th Legislature, Regular Session, 1979; Article 717q, Vernon's Annotated Texas Civil Statutes, as amended by H.B. 903, Acts of the 69th Legislature, Regular Session, 1985; and all laws amendatory or supplemental to any of the foregoing. (2) "Agency" shall mean the West Texas Municipal Power Agency as created and established (pursuant to the Act) by concurrent ordinances adopted by the governing bodies of the Cities, or its successor. (3) "Annual System Costs" shall mean, with respect to a Contract Year, and to the extent not paid or to be paid from the proceeds of Bonds or other funds legally available to the Agency, all costs and expenses of the Agency that are paid or incurred during such Contract Year and are allocable to the System, including, but not limited to the payment of the Operating and Maintenance Expenses of the System, all costs, charges, and expenses of replacements and renewals of the System and all taxes, assessments or other governmental charges lawfully imposed on the Agency or on the revenues of the System or payments in lieu thereof, and the deposit or payment of any and all amounts which the Agency may now and hereafter become obligated to deposit into any fund or pay from revenues of the System, by law, contract, or any Bond Resolution. (4) "Annual System Budget" shall mean, with respect to a Contract Year, the budget of the Agency prepared in accordance with Section 6 hereof for such Contract Year or, in the case of an amended Annual System Budget, for the remainder of such Contract Year. (5) "Approved Project" shall mean the Initial Project and any Project which has been approved by all of the Cities and the Agency pursuant to Section 13 of this Contract. (6) "Bonds" shall mean collectively the Series 1998 Bonds and Additional Bonds issued by the Agency pursuant to the Bond Resolution. 0501481W3990 -2- (7) "Bond Resolution" shall mean the resolution authorizing the issuance of the "West Texas Municipal Power Agency Revenue Bonds, Series 1998, "and any resolution subsequently adopted by the Agency which authorizes the issuance of additional bonds, including refunding bonds, on a parity with the said Series 1998 Bonds. Subject to the provisions of paragraph (e) of Section 14, in the event a City disapproves a Project (pursuant to Section 13 hereof) obligations thereafter issued shall not be on a parity with the Series 1998 Bonds, and such obligations, if any, shall not be deemed to have been issued pursuant to the Bond Resolution. (8) "Contract Year' shall mean the fiscal year of the Agency as from time to time determined by the Agency; provided, however, the first Contract Year of the Agency shall begin on the effective date of this Contract and shall end on the last day of the fiscal year of the Agency within which this Contract becomes effective. (9) "Debts" shall mean Bonds and Subordinated Indebtedness, as defined in the Bond Resolution, together with interest thereon, and redemption premiums, if any. (10) "Debt Service" or "Debt Service Requirements" shall mean, with respect to any period, the net aggregate of the amounts required to be paid during said period on any Debts outstanding as the same shall become due. (11) "Development Project" shall mean any one or more of the following: (i) repairs, replacements, or modifications to an existing generating or transmission facility owned in whole or in part by the Agency, and which are designed to increase or maintain an operating efficiency of the facility or (ii) preliminary and developmental work to determine whether any work should be undertaken as a Project, or engineering, legal, and financial studies in connection with the planning, development or utilization of power resources, or (iii) the acquisition or development (either or both) of a fuel supply or supplies in order to provide fuel for generating facilities which are then owned by the Agency or in the process of being constructed for or on behalf of or for the use of the Agency with respect to an Approved Project that is part of the System; or (iv) any purpose for which proceeds of Bonds may be expended under the Act, except a Project. The Agency may issue Bonds (in a separate series or combined with Bonds being issued for other purposes) to provide funds for a Development Project upon compliance with the provisions for the issuance of Bonds as set forth in the Bond 0501481/973990 -3- N Resolution, but the approval of the Cities, pursuant to Section 13 hereof, shall not be required. (12) "Effective Date of Disapproval' shall mean the 90th calendar day following action by the governing body of a City which disapproves a Project submitted to such City pursuant to Section 13 hereof. (13) "Energy" shall mean kilowatt-hours (kwh). (14) "Initial Project" shall mean the 62 MW electric power project consisting of (i) the acquisition, construction and installation of a 40 MW combustion turbine generator at Lubbock Power and Light Plant No. 2 and (ii) the re -powering of units 6 or 7, existing 22 MW Westinghouse non -heat, condensing steam turbine generators, located at Lubbock Power and Light Plant No. 2, and the facilities necessary to incorporate such generation facilities into the electrical system to serve the Cities. (15) "Net Energy Received From Others" shall mean the total amount of Energy supplied at the Points of Delivery by utilities other than the City's utility, less PURPA Purchases. (16) "Operating and Maintenance Expenses" shall mean all expenses incurred in the operation and maintenance of the System and the Agency which are properly accounted for such purposes under the Uniform System of Accounts. Such term does not include depreciation or obsolescence charges or reserves therefor, interest charges and charges for the payment of principal, or amortization, of Bonds or other indebtedness of the Agency. (17) "Points of Delivery" shall mean the points on the System of, or available, to the Agency, as determined from time to time by the Agency and the City concerned, at which Power and Energy are made available to a City pursuant to this Contract. Such Points of Delivery shall be attached hereto as Exhibit A, and a change therein, approved by the Agency and the City affected, shall not be considered as an amendment to this Contract. (18) "Power' shall mean kilowatts (kw). (19) "Project" shall mean one or more of the following: (i) any power generating facility (or interest therein) to be constructed or acquired by the Agency, including but not limited to the Initial Project, as well as fuel therefor, (ii) any transmission facility required to connect or interconnect such facilities with a 0501481I973990 -4- City or Cities or others, or (iii) any addition or improvement to a power generating or transmission facility which is to be owned, in whole or in part, by the Agency, or (iv) any contract right of the Agency to purchase or receive a power supply or transmission capacity (a) by the making of a prepayment of capital costs which are associated with the supply of capacity so purchased, or (b) the execution of a take or pay contract having a duration of more than 10 years, including any renewals thereof, or (c) the execution of a contract to purchase Power or Energy (either or both) by the Agency on an all requirements basis. The term does not include any facility financed with the proceeds of Special Contract Obligations as permitted under and defined in the Bond Resolution. (20) "PURPA Purchases" shall mean the total amount of Energy required to be purchased by a City from a small power production facility, a co -generation facility or other facility pursuant to the Public Utility Regulatory Policies Act of 1978. (21) "Rated Capacity" shall mean the maximum load expressed in net kilowatts (kw) that a generating source (as identified in the definition of Project) is capable of supplying under good operating conditions. (22) "Series 1998 Bonds" shall mean the "West Texas Municipal Power Agency Revenue Bonds, Series 1998", dated April 1, 1998. (23) "System" shall mean the Agency's interest in all properties (owned or operated by or on behalf of the Agency) which are financed, in whole or in part, through the issuance of obligations by the Agency for Approved Projects, System Development and Reliability Expenditures, and Development Projects. The term also includes any contract for providing services or Power and Energy, either or both. The initial System is hereby designated as System A. The term does not include the Agency's interest in any facility financed with the proceeds of Special Contract Obligations issued by the Agency as permitted under and defined in the Bond Resolution. (24) "System A" shall mean the (i) Development Projects, (ii) any reports, studies or documents prepared for the use of the Agency, and (iii) the Initial Project and any facilities hereafter acquired or constructed by the Agency by reason of an Approved Project. (25) "System Development and Reliability Expenditures" means those expenditures which the Agency determines, under prudent utility practices, 05014811973990 -5- should be expended over a given period of time for (i) transmission and related facilities to increase the reliability of the delivery of Power and Energy by the Agency or (ii) repairs, replacements or modifications to an existing generating facility (owned in whole or in part by the Agency or under construction by it) which are designed to increase the Rated Capacity of such generating facility. Such expenditures which are to be paid from the proceeds of a series of Bonds shall be considered a single Project. (26) "Uniform System of Accounts" and all other accounting methods and terminology contained or referred to in this Section or elsewhere in this contract means accounting principles, methods and terminology followed and construed, as nearly as practicable, in conformity with the Uniform System of Accounts for Class A and Class B Public Utilities and Licensees and accounting rules and regulations thereunder prescribed by the Federal Energy Regulatory Commission for privately owned power companies which are subject to its jurisdiction and engaged in business comparable to the business of the Agency, as amended from time to time, or such other system as may be required by any regulatory agency. Section 3: Sale and Purchase of Power and Energv. (a) Each City during the time this Section is applicable shall: (1) subject to existing contracts (or extensions thereof, if the Agency is a party to such extension agreement), purchase and receive from the,Agency all Power and Energy which it shall require for the operation of its electric system in excess of the amount (i) supplied by any generation and transmission facilities owned by it on April 1, 1998, including generating and transmission facilities under construction on such date, and improvement or extensions of generating facilities which increase the Rated Capacity of same provided the increase during any period of two successive Contract Years does not exceed 10% of such City's generating facilities' Rated Capacity at the beginning of such period; and provided further the Cities and the Agency may, in writing, waive such 10% limit, and (ii) supplied from any generation facility primarily fueled from any renewable source (i.e., wind, solar, solid waste, etc.); and (2) binds itself to pay for all Power and Energy purchased or otherwise acquired by it from the Agency pursuant to this Section 3 at the rates and charges established pursuant to Section 7 of this Contract. 0501481/973990 -6- The foregoing provisions of this Subsection (a) shall have no application to the purchase or exchange of Power or Energy (i) on an emergency, maintenance, or stand-by basis or (ii) on the basis of economic dispatch between the Cities and another, or any one or more of such entities, or any combination thereof, and the Agency. (b) In the event the Agency is not able to supply Power and Energy required or requested under its power sales contracts, the Agency shall allocate its available Power and Energy monthly among (i) the Cities pro rata in accordance with their respective amounts of Net Energy Received From Others during the corresponding month of the preceding Contract Year unless a governmental agency requires a different allocation and (ii) other power purchasers as may be provided by contract. The Agency shall devote its best efforts to the acquisition, by purchase or otherwise, of the Power and Energy required to meet the requirements of its power sales contracts. During the period the Agency is unable to supply Power and Energy required or requested under its power sales contracts, so that an allocation of Power and Energy is made, the Cities shall be permitted (during such period) to purchase only such amounts of Power and Energy as are not supplied by the Agency. (c) The provisions of this Section do not apply to any City from and after the Effective Date of Disapproval. Section 4: Performance of Certain Services. (a) In addition to the delivery of Power and Energy hereunder and the performance of all acts and actions incident thereto, the Agency agrees, to the extent not performed pursuant to or as a consequence of any other Section of this Contract, to perform or cause to be performed, in a prudent and economical manner the following services concerning the interrelated activities of the Agency, the Cities and others, as well as various combinations of such parties: (1) comprehensive planning for Power and Energy and the transmission thereof to mutually agreed upon load centers; (2) undertake or coordinate and monitor the design, construction and operation of joint facilities; (3) plan for and undertake or coordinate and monitor the economic dispatching of Power and Energy of the System and the systems of the Cities and other entities (to the extent permitted by contract) to which such systems are interconnected, pursuant to subsequent agreement(s) between the Cities, the Agency and any other entity; 0501481/973990 -7- (4) provide accounting and cost allocation services; and (5) provide such other services as the Agency and a City, from time to time, shall determine to be appropriate and necessary. (b) Each City hereby binds itself to pay for the cost of the services provided by the Agency pursuant to Subsection (a) of this Section 4 at the rates and charges established pursuant to Section 7 of this Contract. (c) In the event electric power is required to be purchased (pursuant to the Public Utility Regulatory Policies Act of 1978 or other provisions of law) from a small power production facility, a co -generation facility or other facility, each City and the Agency shall use their best efforts to arrange for such purchases to be made by the Agency. If such arrangements cannot be made, then each City shall make the required purchases and sell the power purchases to the Agency. Each City appoints the Agency to act as its agent in all dealings with the owner of any such facility from which power is to be purchased and in connection with all other matters relating to such purchases. Section 5: Delivery of Power and Energy. (a) The Power and Energy to be fumished under this Contract shall be alternating current, sixty (60) hertz, three-phase, subject to conditions of delivery and measurement as hereinafter provided. (b) The Points of Delivery, delivery voltage and other conditions of service shall be in accordance with the service specification set forth in Exhibit A attached to this Contract, as amended by the Agency and the City affected by the amendment from time to time. (c) Each City shall make and pay for all connections between its facilities and the Agency's System at the Points of Delivery. Each City shall install, own and maintain any necessary substation equipment at the Points of Delivery from the Agency's System and shall install, own and maintain switching and protective equipment of adequate design and sufficient capacity beyond such Points of Delivery to enable the City to take and use the Power and Energy supplied under this Contract without hazard,to the System. In the event the Points of Delivery set forth in Exhibit A are not on a City's electric system, such City shall arrange for transmission of Power and Energy sold under this Contract to its electric system, including the installation and maintenance of any facilities required to receive such Power and Energy into such City's electric system. 0501481/973990 -8- (d) Except as otherwise agreed, metering equipment shall be furnished, installed and maintained by the Agency at each Point of Delivery to each City at the low voltage side of the transforming equipment maintained at such location. Loss adjustments for low voltage side or remote metering shall be as specified in said Exhibit A or as otherwise agreed by the parties. Section 6: Annual System Budget. (a) Except as provided in paragraph (e) of this Section, the Agency shall prepare or cause to be prepared an Annual System Budget at least ninety (90) days prior to the beginning of each Contract Year which Annual System Budget shall itemize estimates of Annual System Costs and all revenue, income or other funds to be applied to such Annual System Costs for and applicable to such Contract Year. Such Annual System Budget shall also utilize and take into account forecasts, which shall be furnished by each City to the Agency at least one hundred twenty (120) days prior to the beginning of such Contract Year, of the monthly peak Power and Energy requirements estimated to be obtained from the Agency during such Contract Year. (b) After consideration of any comments of the Cities, the Agency, not less than thirty (30) days prior to the beginning of such Contract Year, shall adopt an Annual System Budget for such Contract Year and the rates and charges for Power and Energy to be furnished and the services to be performed during such Contract Year and shall cause copies of such Annual System Budget and rates and charges to be delivered to the Cities. Provided, however, the Annual System Budget for the first Contract Year shall be prepared and adopted as provided in paragraph (e) of this Section. (c) If, at any time or from time to time after the adoption of the Annual System Budget in accordance with Subsection (b) of this Section 6, the Agency estimates that the Annual System Costs or revenues for the Contract Year or any part thereof for which such Annual System Budget applies will be greater or less than the Annual System Costs or revenues set forth in the Annual System Budget, or that the amount of Power and Energy which the Agency expects to deliver during such Contract Year or any part thereof is greater or less than the amount of Power and Energy which the Agency estimated at the time of adoption of the Annual System Budget would have been delivered during such Contract Year, then the Agency may prepare an amended Annual System Budget. The amended Annual System Budget shall be timely adopted by the Agency and transmitted to the Cities. (d) In the event a budget for the ensuing Contract Year has not been adopted on or before the first day of the Contract Year, the total amount budgeted for the preceding Contract Year shall be the total amount of the temporary budget for such 05014811973990 -9- purposes for the ensuing Contract Year. The temporary budget shall be effective only until such time as a permanent budget has been finally adopted and approved. The chief administrative officer of the Agency shall be responsible for the allocation for expenditure of the total amount of the temporary budget until a permanent budget is adopted and approved. (e) The initial Annual System Budget under this Contract shall be the Annual System Budget adopted by the Agency at a meeting of the Board of Directors of the Agency. Section 7: Rates and Charges: (a) The rates and charges of the Agency to the Cities for Power and Energy and for services supplied shall be: (1) non-discriminatory, and (2) fair and reasonable, and be based upon the cost of providing the Power and Energy or providing the service with respect to which the rate or charge is based, and (3) adequate (after taking into consideration other moneys received or anticipated to be received) in each Contract Year to pay or make provisions for paying Annual System Costs. (b) When the Board of Directors proposes to establish a new rate or charge, as determined under Schedule B, the Agency shall give each City written notice that it proposes to establish a new rate or charge for Power and Energy or for services (setting forth such charge) on a date certain (which shall not be less than 120 days from the date of mailing of the notice to each City and all such notices are to be mailed simultaneously). Except as provided in paragraph (c) hereof, no charge or adjustment in any rate or charge made by the Agency shall be effective if any City, by resolution or ordinance of its governing body, enters an objection to such adjustment in a rate or charge by causing to be filed with the chief administrative officer of the Agency a copy of such resolution or ordinance more than 90 days prior to the suggested effective date of the proposed new rate or charge. In the event a City enters an objection to the charge or adjustment in a rate or charge and such objection is not withdrawn by the City objecting within 60 days of the proposed effective date of such change, the effective date of the charge or adjustment shall be postponed pending the resolution of the dispute in the following manner: 05014811973990 -10- (1) the Cities may jointly select an independent consultant or consultants to prepare a rate evaluation and schedule of proposed rates and charges, provided if such joint selection is not made within 30 calendar days of the filing of an objection (evidenced by the passage of a resolution or ordinance) such independent consultant shall be appointed by the Board of Directors of the Agency; (2) the report of the independent consultant shall be submitted to the Agency and each City for consideration; and (3) if the report of the independent consultant is approved by the governing bodies of the Agency and the Cities, the same shall be effective as of the date originally suggested by the Agency in its notice. If the adjustment is not approved or an agreement reached within 15 days after the receipt of the report of the independent consultant, then the Agency and the Cities shall each have all of the rights and remedies at law and in equity except that in no event shall any City be relieved of its obligation to the holders of Bonds under Section 13 or 14 of this Contract. (c) The Board of Directors of the Agency may change or adjust any rate or charge for Power and Energy or for services supplied to a City, if such Board determines (i) an emergency exists and (ii) the emergency adjustment meets the criteria established in paragraph (a) of this Section. The emergency adjustment shall be effective for a period of 180 days (unless the notice from the Agency species a lesser period) and shall be effective 30 days after the mailing of notice to the Cities (all of which notices shall be mailed simultaneously). Section 8: Meter Readings and Payment of Bills. The Agency shall read meters or cause meters to be read monthly and bill on a monthly basis each City for Power and Energy furnished under this Contract. It shall also bill on a monthly basis each City for services rendered pursuant to Section 4 of this Contract. Section 9: Meter Testing and Billing Adjustment. The Agency shall test and calibrate meters or cause meters to be tested and calibrated by comparison with accurate standards at intervals of twelve (12) months, or such other intervals as the parties agree. The Agency shall also make or cause to be made special meter tests at any time at a City's request. The costs of all tests shall be borne by the Agency, provided, however, that if any special meter test made at a City's request shall disclose that the meters are recording accurately, the requesting City shall reimburse the Agency for the cost of such test. Meters registered not more than 112 of 1% above or below 0501481/973990 -11- t normal shall be deemed to be accurate. The readings on any meter which shall have been disclosed by test to be inaccurate shall be corrected from the beginning of the monthly billing period immediately preceding the billing period during which the tests are made in accordance with the percentage of inaccuracy found by such test, provided, that no correction shall be made for a longer period unless the Agency and City involved mutually agree thereto. Should any meter fail to register, the Power and Energy delivered during such period of failure shall, for billing purposes, be estimated by the Agency and the City from the best information available. The Agency shall notify the City or cause the City to be notified in advance of the time of any meter reading or test so that the City's representative may be present at such meter reading or test. Section 10: Payments to Constitute Operating Expenses of City System. Each City's obligation to make the payments under this Contract shall constitute an operating expense of its electric system payable solely from the revenues and receipts of such electric system. Each City shall be bound and obligated to make such payments and the obligation to make the payments under Section 14 of this contract shall be unconditional. Section 11: City Rate Covenant. Each City shall establish, maintain and collect rates and charges for the electric service of its electric system which shall produce revenues at least sufficient, together with other revenues available to such electric system and available electric system reserves, to pay to the Agency, when due, all amounts payable by such City under this Contract. Section 12: Covenants of the Agency. (a) After first satisfying the Power and Energy requirements of the Cities, as such requirements are established from time to time, and the requirements of other power purchasers, the Agency shall use it best efforts to market and dispose of any and all surplus Power and Energy available from the System or which the Agency is obligated by contract to purchase or otherwise acquire, and which is in excess of the requirements of all Cities and other power purchasers, upon the most economically advantageous terms and conditions obtainable, to the extent that it may legally do so. (b) The Agency shall use reasonable diligence to provide a constant and uninterrupted supply of Power and Energy hereunder. If the supply of Power and Energy shall fail, or be interrupted, or become defective by reason of force majeure as hereinafter provided, the Agency shall not be liable therefor or for damages caused thereby. 05014811973990 -12- (c) The Agency shall diligently enforce and take all reasonable steps, actions and proceedings necessary for the enforcement of all terms, covenants and provisions of any power sales contracts. The Agency shall not amend this Contract without first having secured the prior written consent of all Cities, but no amendment shall be made in Section 14 of this Contract. (d) The Agency covenants and agrees that it will operate, maintain and manage its System or cause the same to be operated, maintained and managed in an efficient and economical manner, consistent with sound utility practice and in accordance with standards normally used by utilities owning like properties. (e) The Agency covenants that it will not make a change in any Bond Resolution so as to create additional Funds (except those now established by the resolution authorizing the issuance of the Series 1998 Bonds) without the approval of such changes by the governing body of each City, nor shall any change be made in the amounts required to be paid into, accumulated in or maintained in the Bond Fund or Reserve Fund (each as defined and created in the Bond Resolution), except as provided in the resolution authorizing the Series 1998 Bonds, without such approval. Section 13: Project Approval and Rights of Cities When a Project is not Approved. (a) Except as provided in paragraph (g) of this Section, prior to the issuance and sale of Bonds to provide money for each Project, the Agency shall submit a written notice to each City as required by the provisions of paragraph (b) of this Section. If a Project has been approved pursuant to paragraph (c) of this Section, the Agency may thereafter issue, sell and deliver Bonds in order to fully provide funds for such Project, including the design, construction, and the placing of same in commercial operation, or to meet any requirement of law, including those of a regulatory agency having jurisdiction, or to pay judgment or casualty losses not covered by insurance, or to meet a safety requirement or overriding public necessity. (b) A written notice of the Agency's intention to provide funds (through the issuance of Bonds) for a Project shall contain a general description of the Project, the projected sources and uses of funds for all aspects of the construction and testing of the Project, and a statement to the effect that, in the opinion of the Agency, the Project is necessary for the Agency to meet its commitments under power sales contracts and is economically feasible, together with an explanation of the Agency's basis for this opinion. Within 60 days after receipt of such notice, each City shall give the Agency written notice of its approval or disapproval of the Project. If a City fails to give the Agency such written notice within such 60-day period, then said City shall be deemed to have approved the Project. 050146IM73990 -13- (c) If all of the Cities (who have approved all previously Approved Projects) approve a Project, then the Agency may proceed with the issuance, sale and delivery of Bonds to provide such Project. If one or more of such Cities should disapprove the Project, then the Agency shall give each such City written notice which of the Cities approved the Project and which of the Cities disapproved the Project. Any of the Cities who approved the Project may then give the Agency written notice of its or their desire that the design and construction of the Project be commenced; and, if the Agency determines that the Project is still feasible, it may proceed with the issuance, sale and delivery of such Bonds, but any City which failed to initially approve such Project shall have elected to limit its responsibilities to System A under this Contract unless it approves the Project under paragraph (f) of this Section. (d) If any City disapproves a Project, such City, during the balance of the term of this Contract: (1) shall no longer be subject to purchase and receive all of its Power and Energy requirements from the Agency; (2) shall, in each calendar month during the remaining term of this Contract, take or pay for an amount of Power and Energy equal to the amount of Power and Energy purchased by such City from the Agency during the corresponding month of the 12 consecutive months' period preceding the calendar month of the Effective Date of Disapproval, or such other amount of Power and Energy as may be from time to time agreed upon by the City, the Agency and the other Cities; and the Agency shall no longer be required to provide any Power and Energy in excess of such amount. The Power and Energy furnished to such City shall be billed by the Agency at rates and charges as from time to time adopted pursuant to Section 7 of this Contract. The calculation of limiting City's obligation under Section 14 of this Contract shall assume that such City's Net Energy Received From Others for the purposes of said calculations is equal to such City's Net Energy Received From Others in the completed Contract Year next preceding the Effective Date of Disapproval. (e) Following the Effective Date of Disapproval, as to the City which disapproved a Project: (1) The right to schedule Power and Energy is subject to outages for maintenance and operating emergencies. 0501481/973990 -14- (2) The City shall not thereafter be entitled to approve or disapprove any subsequent Projects, provided the Agency and all of the Cities which have not disapproved a Project may allow a City to thereafter approve a Project. (3) Amounts due from entities other than the Cities shall be taken into account in calculating the amount due from the Cities. (f) After a City has disapproved a Project under paragraph (c) of this Section, it may thereafter revoke such action and approve the Project provided: (1) the Agency and each of the Cities approve the revocation, and (2) in order to pay a pro rata part of expenses incurred (including Debt Service) since the Project was disapproved, the City agrees to assume or pay such amount as may be determined by the Agency and the Cities. Section 14: Debt Service Guarantee: Operating and Maintenance Expenses. (a) In any instance where the amount of money on deposit in the Bond Fund is not the full amount then required to be on deposit therein, without giving consideration to transfers made from other than the Revenue Fund (as defined and created in the Bond Resolution) or from Bond proceeds (provided that transfers may be made from the Reserve Fund to the Bond Fund for not more than two (2) consecutive calendar months), each City shall be obligated to make a payment, the aggregate amount of which shall be the amounts that are necessary to establish or reestablish the amount then required, under the terms of the Bond Resolution, to be on deposit in the Bond Fund and the Reserve Fund. The percentage share of the payment to be made by each City, based on data for the 12 consecutive months' period ending September 30, 1997, would be as follows: City of Brownfield, Texas: 8.97% City of Floydada, Texas: 2.10% City of Lubbock, Texas: 85.21 % City of Tulia, Texas: 3.72% Except as set forth in Section 13(d), such percentage share of the payment to be made by each City shall be adjusted at the beginning of each Contract Year. Such adjustment shall be made by calculating the percentage relationship that each City's Net Energy Received From Others for the Contract Year immediately preceding the Contract Year in which the adjustment is being made bears to the total aggregate Net 05014a1/973990 -15- Energy Received From Others of all Cities for such Contract Year, and the sum of the adjusted percentages shall equal 100%. The payments required to be made to said Bond Fund or Reserve Fund (any one or all of such Funds) shall be paid by the Cities in the percentage share determined above and such payments shall be made direct to the custodian of the respective Funds as established in the Bond Resolution. Each City unconditionally covenants the payment will be made, if required, in the amount and in the manner prescribed. The provisions of this covenant are for the benefit and protection of the Agency, the Cities and the owners and holders of Bonds, it being recognized that the holders of such Bonds shall be third -party beneficiaries of this covenant, and it is understood by the contracting parties that the purchaser of Bonds has and will agree to the purchase of Bonds conditioned upon this covenant. (b) In any instance in which the funds of the Agency are insufficient to pay Operating and Maintenance Expenses or other expenses (except those for which provision is made in paragraph (a) hereof), payments shall be paid to the Agency by the Cities in the percentage share determined under paragraph (a) of this Section 14. (c) A new power purchaser (with the approval of the Agency and the Cities) may assume primary liability for the obligation to make payments under this Section with respect to Debts of the Agency incurred prior to its becoming a power purchaser, but the same shall not discharge the liability of those who were obligated when such Debts were incurred (who shall remain secondarily liable). (d) Should a City fail to make its percentage share of payments for a period of sixty (60) days, the Agency shall make a redetermination of the percentage share of payment pursuant to Section 14(a) hereof among the then non -delinquent Cities so that the sum of the recalculated and readjusted percentages among the non -delinquent Cities shall equal 100% for the remaining Contract Year and each subsequent Contract Year, or part thereof, one or more Cities are not "default in payment" pursuant to Section 15(a)(2) hereof. Notwithstanding a redetermination in the percentage share of payments resulting from a City being in "default in payment", the Agency shall pursue all legal remedies against any City that is delinquent in its percentage share of payments calculated in accordance with Section 14(a) hereof to enforce and protect the rights of the Agency, the Cities not in default in payment and the Holders of the Bonds, if any Bonds are Outstanding. The City delinquent in payment of its percentage share of payments shall not be relieved of the liability to the Agency for the payment of all amounts due and payable to the Agency had no default in payment occurred and no redetermination or recalculation in the percentage share of payments been required by 0501481/9739W -16- reason of such City's default in payment. It is expressly provided the provisions of this Section 14(d) are for the benefit of the Agency and the Holders of Bonds, if Bonds have been issued, so as to insure that 100% of the percentage share of payments will be paid by non -delinquent Cities during each Contract Year, or portion thereof, regardless of the delinquency of a particular City. If any amount due and owing the Agency by any City is placed with an attorney for collection, such City shall pay to the Agency all attorneys fees, in addition to all other payments provided herein, including interest. Immediately following any recalculation and adjustment to the Cities' percentage share of payments resulting from a City being delinquent in payment, the Agency will promptly notify and fumish each non -delinquent City with an updated schedule of monthly payments reflecting such redetermination and adjustment of each non - delinquent City's percentage share of payments. (e) In the event a City disapproves a Project under Section 13, then each City shall continue to be obligated under paragraph (a) of this Section with respect to (i) Bonds theretofore issued and Bonds thereafter issued to fully provide funds for each Project as contemplated by the second sentence of Section 13(a), and (ii) Bonds thereafter issued for Development Projects described in clauses (i) and (iii) of the definition of that term. For and in consideration of the payments to be made by the Cities under this Contract (including those under this Section) the Agency agrees to use its best efforts to deliver Power and Energy from Projects, to such Cities, under the terms of this Contract, and such payments by the Cities shall be in consideration for the Agency's agreement to deliver such Power and Energy; but the failure of the Agency to comply with such agreement shall not relieve any City of its obligations under paragraph (a) (b) or (d) of this Section, which obligations shall be unconditional and absolute. Section 15: Remedies in Event of Default. (a) If any City (1) fails or defaults in meeting the terms, conditions and covenants of this contract other than a default in payment for which provision is made in subparagraph (2) of this subsection (a) and such default continues for a period of 15 days, the Agency shall give notice (in the manner contemplated by Section 29 of this Contract) to the Cities, and such defaulting City shall from the date of the mailing of such notice, have a period of 30 days to cure the default; or 0501481/973990 -17- (2) fails to make any payment (hereinafter called a default in payment) to the Agency that is required to be made under the provisions of this Contract, and such default in payment continues for a period of fifteen (15) days, the Agency shall give notice (in the manner contemplated by Section 29 of this Contract) to the Cities, and the defaulting City shall, from the date of the mailing of such notice, have a period of thirty (30) days to pay the full amount then due to the Agency, together with interest thereon, as hereinafter provided. If a City does not cure its default within such period of thirty (30) days, then, so long as such City remains in default, and in addition to any other rights which the Agency has under this Contract and at law and in equity, the Agency may terminate all service to such City. Additionally, in the event of default in payment, the Agency may charge to and collect from such City each calendar month the amount which the Agency determines to be the difference between what the Agency would have received from such City under this Contract for Power and Energy and Services furnished and delivered to such City, had such City not been in default, and the amount, if any, which the Agency receives from sales of such Power and Energy and services to the other Cities, or others, either or both. Termination of service hereunder shall not reduce or change the obligation of the defaulting City under the other provisions of this Contract. (b) If the Agency fails or defaults in meeting the terms, conditions and covenants of this Contract, except its covenant to use reasonable diligence to provide a constant and uninterrupted supply of Power and Energy contained in Section 12(b), and such default continues for a period of 15 days after a City has given the Agency notice of such default in the manner contemplated in Section 29 of this Contract, then such City shall have all of the rights and remedies provided at law and in equity, except that in no event shall any of the Cities be relieved of its obligation specified in Section 14. The delivery of available Power and Energy as provided in this Contract shall be a ministerial duty of the Agency. Section 16: Payment Due Dates and Delinguency. (a) In the event that a City fails to make any payment at the time herein specked, interest on such delinquent amount shall accrue at the rate of ten percent (10%) per annum from the date such payment becomes due until paid in full, and the Agency may institute a proceeding for a mandatory injunction requiring the payment of the amount due and interest thereon, such action to be instituted in a court of competent jurisdiction. (b) All payments required to be made by the Cities under the terms of this Contract shall be due and payable within fifteen (15) days following the date the Agency renders the bill, and the Cities shall have no right of setoff, recoupment or counterclaim 0501481/973990 -18- against any payment under Section 14 of this Contract, or any funds established for the payment and security of Subordinated Indebtedness, which are unconditional. (c) Should a dispute as between any City and the Agency arise as to whether the Agency is in compliance with its covenants as contained herein, each City shall nevertheless be obligated (1) to make the payments provided by paragraph (a) of Section 14 hereof and (2) to pay such amount of the Annual System Costs as may not be in dispute pending the resolution of such dispute, provided a City may elect to pay all such Annual System Costs, including any disputed amount. In the event a disputed amount of Annual System Costs is paid by a City the same shall be placed in escrow in an interest bearing account by the Agency pending resolution of the dispute, but only the principal amount thereof shall be returned to the City. If the City elects not to pay the amount in dispute and the dispute is resolved against such City, the amount ultimately found to be due plus interest at 10% per annum (calculated from the date the same was originally due) shall be paid by the City within 15 days of the resolution of the controversy. Attorneys' fees shall be assessed as court costs. Section 17: Power Sales Contracts. The Agency may provide Power and Energy and Services pursuant to a power sales contract, upon such terms as may be approved by the governing body of the Agency and, except as provided by Section 12(a), the Cities. Section 18: Continuation of Services. A City, except as limited by Section 13, shall have the right to the continued performance of services provided under the provisions of this Contract for the useful life of the System by giving written notice to the Agency at least five years prior to the scheduled termination of this Contract (as specified in Section 1), provided that if such termination is occasioned by making provision for the payment of the Debts of the Agency, the notice may be given within 90 days of such provision being made. Such City shall be obligated to continue paying its proportionate share of the Annual System Costs. Section 19: City Not to Sell its Electric System. Each City covenants that during the term of this Contract it will not sell or otherwise dispose of its electric utility distribution system in whole or substantially as a whole to any entity other than an assignee under Section 20 of this Contract and, in the case of such an assignee, only with the written consent of the Agency. Section 20: Assignment of Rights of a City. A City may assign any of its rights under this Contract to another entity, if permitted by applicable law, but no sale or other disposition shall relieve such City of its obligations under this Contract (including the 0501481/973990 -1 9- obligations under Sections 10, 11 and 14) until all Debts of the Agency have been paid, or provision for their payment been made, pursuant to the terms of the Bond Resolution; provided, however, no assignment of any rights hereunder may be made if, in the opinion of counsel of recognized standing in the field of law relating to municipal bonds selected by the Agency, such assignment would adversely affect the exemption from federal income taxation of the interest on the Bonds. Section 21: Dissolution of the Agency. At such time as the Debts of the Agency have been paid or provisions made therefor pursuant to the Bond Resolution, and the Agency is dissolved, each City who has not made an election under Section 13 shall be entitled to an undivided interest in the properties of the Agency in proportion to the amount paid to the Agency under this Contract. Section 22: Force Maieure. (a) If for any reason of "force majeure" any of the parties hereto shall be rendered unable, wholly or in part, to carry out its obligations under this Contract, other than the obligation of the Cities to make the payments required under the terms of this Contract, then if such party shall give notice and the full particulars of such reasons in writing to the other party within a reasonable time after the occurrence of the event or cause relied on; the obligation of the party giving such notice, so far as it is affected by such "force majeure," shall be suspended during the continuance of the inability then claimed, but for no longer period, and such party shall endeavor to remove or overcome such inability with all reasonable dispatch. The term "force majeure" as employed herein shall mean acts of God, strikes, lockouts, or other industrial disturbances, acts of the public enemy, orders or actions of any kind of the Government of the United States or of the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, washouts, droughts, arrests, restraints of government and people, civil disturbances, explosions, breakage or accident to dams, machinery, pipelines, or canals or other structures or machinery, on account of any other cause not reasonably within the control of the party claiming such inability. It is understood and agreed that the settlement of strikes and lockouts shall be entirely within the discretion of the party having the difficulty, and that the above requirement that any "force majeure" shall be remedied with all reasonable dispatch shall not require the settlement of strikes and lockouts by acceding to the demand of the opposing parties when such settlement is unfavorable to it in the judgment of the party having the difficulty. (b) No damages shall be recoverable from the Agency or the Cities by reason of the causes above mentioned. 0501481/973990 -20- Section 23: Insurance. (a) The Agency shall maintain, or cause to be maintained in force for the benefit of the Agency, such insurance with respect to the System as shall be reasonably available and as is usually carried by municipal electric utilities constructing and operating generating and transmission facilities but, in the case of nuclear generating facilities, not less than will satisfy the requirements of federal and state law and the Nuclear Regulatory Commission regulations, and such other insurance as is usually carried by municipal electric utilities owning like properties; provided, however, in any event, the Agency shall maintain, or cause to be maintained, in force, insurance in such amounts and against such risks as required by the Bond Resolution. (b) The Agency will secure and maintain adequate fidelity insurance or bonds on all officers and employees handling or responsible for funds of the Agency. (c) The obligation hereunder to procure and maintain insurance with respect to a Joint Project, as defined in the Bond Resolution, shall be met if the entity acting as the manager of the Joint Project obtains and maintains the insurance required for the benefit of all owners of the Joint Project, as their interest may appear. (d) The Agency may establish and create a special fund for the purpose of providing a self insurance fund. Amounts to be deposited in or credited to such fund in any Contract Year shall be accounted for as Operating and Maintenance Expenses. To the extent that monies are deposited in such fund, if created, such monies may be invested in Investment Securities, as defined in the Bond Resolution. To the extent of the amounts held in such fund, the face amount of appropriate insurance policies may be reduced. Section 24: Reports. The Agency will prepare and issue to each City the following reports for each fiscal year: (i) financial and operating statement relating to the System; (ii) status of construction for each facility constituting the System during construction; and (iii) analysis of operations relating to the System. Section 25: Records and Accounts. The Agency will keep accurate records and accounts of the System and of the transactions relating to each facility constituting the System as well as of the operations of the Agency in accordance with the Uniform System of Accounts, which shall include depreciation. Within one hundred twenty (120) days after close of each Contract Year, the Agency shall cause such records and accounts and all transactions of the Agency relating to the System with respect to such Contract Year to be subject to an annual audit by an independent certified public accountant. A copy of each such annual audit shall be sent by the Agency to each City. 05014811973990 ' -21 - Section 26: Access. Each City shall at all times have reasonable access to examine any and all books and records of the Agency and to examine any facility of the System. The Agency and each City will give the other the right to enter the premises of the other at all reasonable times for the purpose of repairing or removing facilities, reading meters and performing work incidental to delivery and receipt of Power and Energy furnished hereunder. Section 27: Governmental Rates, Regulations and Laws. The Contract shall be subject to all valid rules, regulations and laws applicable thereto, as promulgated by the United States of America, the State of Texas, or any other governmental body or agency having lawful jurisdiction or any authorized representative or agency of any of them. Section 28: Easements. To the extent permitted by applicable charter provisions, each City agrees that the Agency or its agent shall (when permitted by existing easement) have full access to such easements or over any easements, right-of-way or property held by such City if, and to the extent, required by the Agency for any and all purposes required for the System or any Project thereof. Section 29: Notices. Any notice, request, demand, statement or bill provided for in this Contract shall be in writing and shall be considered to have been duly delivered when sent by registered or certified mail, addressed as follows, unless another address has been designated, in writing, by the party entitled to receive same: Agency: Cities: West Texas Municipal City of Brownfield City of Lubbock Power Agency 218 W. Main Street 1625 13th Street P.O. Box 2000 Brownfield, Texas 79316 Lubbock, Texas 79401 916 Texas Ave Attn: City Manager Attn: City Manager Lubbock, Texas 79457 Attn.: Executive Director City of Floydada City of Tulia 114 West Virginia 201 N. Maxwell Floydada, Texas 79235 Tulia, Texas 70988 Attn: City Manager Attn: City Manager Section 30: Severability. The parties hereto agree that if any of the provisions of this Contract should contravene or be held invalid under the laws of the State of Texas, such contravention or invalidity shall not invalidate the whole Contract but it shall be 05014811973990 -22- construed as though not containing that particular provision, and the right and obligations of the parties shall be construed and in force accordingly. Section 31: Entire Contract. This Contract, as amended as of April 1, 1998, shall constitute the entire understanding between the parties hereto, superseding any and all previous understanding, oral or written, pertaining to the subject matter contained herein. No party hereto shall have any relief, or be entitled to rely, upon any oral representation or oral information made or given to such party by any representative of the other party or anyone on its behalf. Section 32: No Waiver. The failure of a party to enforce at any time any of the provisions of this Contract or to require at any time performance by the other party of any of the provisions of this Contract shall not be construed as a waiver of such provisions or the right of such party thereafter to enforce each and every provision of this Contract. Section 33: Contracts to be Separate. This instrument embodies four separate contracts between the Agency and each City. Termination of one Contract shall not affect the others. 0501481/973990 -23- IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed in their corporate names and their corporate seals affixed, all by the proper officer duly authorized thereunto, as of the day and year first hereinabove written. (SEAL) ATTEST: By: Secretary, Board of Directors APPROVED AS TO CONTENT Paul Mmpsdn, Director (SEAL) ATTEST: By: / aL City Ycretary (SEAL) ATTEST: 0 City Secretary 0501481/973NO -24- WEST TEXAS MUNICIPAL POWER AGENCY By: President, Board of Directors CITY OF LUBBOCK, T S By: Mayor CITY OF BROWNFIELD, TEXAS By: Mayor (SEAL) ATTEST: By: City Secretary (SEAL) ATTEST: By: City Secretary 05014811973990 -25- CITY OF TULIA, TEXAS By: Mayor CITY OF FLOYDADA, TEXAS By: Mayor EXHIBIT "A" to Power Sales Contract City of Lubbock 1) Holly Switching Station Facilities included are as follows: (a) 230 KV interconnection with SPS (b) 60/80/100 MVA, 230/69 KV autotransformer (c) Associated breakers, bus work, switches, etc. 2) West Intertie Substation: Facilities included are as follows: (a) 230 KV interconnection with SPS (b) 60/80/100 MVA, 230/115/69 KV autotransformer (c) Associated breakers, bus work, switches, etc. 3) Plant No. 2 (under construction Facilities included are as follows: (a) 115/69 KV interconnection with LP&L (b) 70 MVA 115/69/13,8 KV Transformer (c) Associated breakers, bus work, switches, etc. Citv of Brownfield Brownfield Delivery Point Facilities included are as follows: (a) 69 KV interconnection with SPS (b) Associated switches (c) 69 KV line City of Floydada Floydada Delivery Point Facilities included are as follows: (a) 69 KV interconnection with SPS (b) Associated switches (c) 69 KV line City of Tulia Tulia Substation Facilities included are as follows: 0501481/973990 -26- (a) 115 KV interconnection with SPS (b) 115 KV line (c) Associated switches 0501481/973990 -27- k - A EXHIBIT B RATES AND CHARGES (1) RATES FOR POWER AND ENERGY The rates to be charged by the Agency for Power and Energy furnished to the Cities shall consist of a demand charge and energy charge. These charges shall be based on cost of service to the degree that is practical. The costs used in developing cost of service rates shall be based on accounting entries as outlined in the Federal Power Commission's Uniform System of Accounts. The rates for demand charges shall be established to recover costs that are related to Debt Service, (including coverage ratios), other ordinarily predictable stable Operating and Maintenance Expenses and such other reasonable fixed costs as these costs relate to plant and transmission capacities utilized. The demand charges shall be based on the above listed costs in proportion to total KW that the Agency has available. Proper consideration shall be given in the demand charges for such factors or coincident peak demands, diversity factors, load factors, etc. of the Cities. Energy charges shall be based on fuel costs, operating personnel costs, variable Operating and Maintenance Expenses, transmission losses, station service energy, and other such reasonable variable costs as these costs relate to energy provided to Cities. The rate making methods used to develop these demand and energy charges shall be consistent with standard utility wholesale rate making procedures. These methods shall be applied as appropriate to the System. It is recognized that these rates shall be developed in a reasonably equivalent manner as similar wholesale power suppliers, Public Utilities Commission of Texas guidelines, and FERC rate regulations as applied to like power systems. (2) RATES FOR SERVICES PROVIDED TO ALL CITIES Various services shall be provided to all Cities as directed by the Board of Directors and will be paid for by the Cities at a rate per kilowatt-hour which shall be established from time to time by the Board of Directors. Each City's share of such charges shall be that portion of the total represented by the ratio of his share of the Net Energy Received From Others to the total Net Energy Received From Others of all of the Cities. Billings will be made in advance on estimates of loads and paid evenly throughout the year. 0501481/973990 -28- (3) RATES FOR SPECIAL SERVICES PROVIDED TO A SPECIFIC CITY Special services may be provided to a member from time to time at the request of a City. Reimbursement for these services will be made at cost by the City receiving the services. 0501481/973990 -29- RESOLUTION NO 5825 CERTIFICATE OF CITY SECRETARY THE STATE OF TEXAS § § COUNTY OF LUBBOCK § CITY OF LUBBOCK § I, the undersigned, City Secretary of the City of Lubbock, Texas, DO HEREBY CERTIFY as follows: 1. On the2k day of April, 1998, a regular meeting of the City Council of the City of Lubbock, Texas, was held at a meeting place within the City; the duly constituted members of the Council being as follows: WINDY SITTON MAYOR ALEX °TY" COOKE ) MAYOR PRO TEM VICTOR HERNANDEZ ) T. J. PATTERSON ) DAVID NELSON ) COUNCILMEMBERS MAX INCE ) RANDY NEUGEBAUER ) and all of said persons were present at said meeting, except the following: n/a Among other business considered at said meeting, the attached resolution entitled: "A RESOLUTION approving certain changes to the Amended Power Sales Contract with West Texas Municipal Power Agency; and resolving other matters incident and related thereto." was introduced and submitted to the Council for passage and adoption. After presentation and due consideration of the resolution, and upon a motion being made by T.J. Patterson and seconded by Alex "Ty" Cooke the resolution was finally passed and adopted by the Council to be effective immediately by the following vote: 7_ voted "For" Q_ voted "Against" 0 abstained all as shown in the official Minutes of the Council for the meeting held on the aforesaid date. 0509463 ,w 2. The attached resolution is a true and correct copy of the original on file in the official records of the City; the duly qualified and acting members of the City Council of said City on the date of the aforesaid meeting are those persons shown above and, according to the records of my office, advance notice of the time, place and purpose of the meeting was given to each member of the Council; and that said meeting and the deliberation of the aforesaid public business was open to the public and written notice of said meeting, including the subject of the above entitled resolution, was posted and given in advance thereof in compliance with the provisions of V.T.C.A., Government Code, Chapter 551, as amended. IN WITNESS WHEREOF, I have hereunto signed y name officially and affixed the seal of said City, this the day of April, 1998. (City Seal) -2- ((Ua� Aalua - - City cretary, City of Lubbd,gk, Texas